Anpor Holdings Pty Limited v Frederick Swaab (trading as Swaab Attorneys) [2010] NSWSC 961

New South Wales Supreme Court

CITATION : Anpor Holdings Pty Limited v Frederick Swaab (trading as Swaab Attorneys) [2010] NSWSC 961

HEARING DATE(S) : 11 August 2010

JUDGMENT DATE : 26 August 2010

JUDGMENT OF : McCallum J

1. That the defendants have leave to inspect document 3, subject to the plaintiff having an opportunity to mask the last paragraph of the document should it wish to do so; DECISION : 2. That the defendants' Notice of motion filed 15 July 2010 otherwise be dismissed; 3. That the defendants pay the plaintiff's costs of the hearing of the motion.

CATCHWORDS : PRACTICE AND PROCEDURE - privilege - whether waived - whether maintenance of claim inconsistent with conduct of plaintiff

LEGISLATION CITED : Uniform Civil Procedure Rules Evidence Act 1995

CATEGORY : Procedural and other rulings

CASES CITED : DSE Holdings Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499

PARTIES : Anpor Holdings Pty Limited Frederick Swaab (trading as Swaab Attorneys)

FILE NUMBER(S) : SC 2009/00297830

COUNSEL : J. O'Connor (Plaintiff) D.R. Pritchard SC (Defendants)

SOLICITORS : JT Law (Plaintiff) Middletons (Defendants)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

McCallum J

26 August 2010

2009/00297830 Anpor Holdings Pty Limited v Frederick Swaab (trading as Swaab Attorneys)

JUDGMENT 1 McCallum J: These are proceedings for professional negligence brought by Anpor Holdings Pty Limited against its former solicitors. The application presently before the court is the solicitors' application for access to six documents produced on subpoena over which Anpor Holdings claims client legal privilege. 2 It is acknowledged on behalf of the defendant solicitors that the claim for privilege is properly supported by evidence establishing that there was a relevant retainer and that the documents in question record confidential communications within the scope of that retainer. The only issue for my determination is whether the privilege otherwise properly asserted has been waived. The defendants contended that in order to determine that issue, it would be necessary for me to inspect the documents in accordance with the court's power under Rule 1.8 of the Uniform Civil Procedure Rules. Anpor Holdings did not oppose that course. 3 In order to understand the contention that privilege has been waived, it is necessary to explain something of the history of the proceedings. The present proceedings are not the first proceedings between the parties. On 21 December 2007, Anpor Holdings commenced proceedings based, as I was informed, on substantially the same allegations as those that underlie its claim in the present proceedings. 4 On 26 August 2008, Malpass AsJ made an order by consent in the original proceedings that Anpor Holdings provide security for costs in the sum of $700 000. The security was to be provided in two instalments, the first in the sum of $400 000 payable by 19 September 2008. 5 Anpor Holdings did not comply with that order and on 3 July 2009, Rothman J dismissed the proceedings on the grounds of its extended default in that respect. That order, of course, did not preclude the commencement of further proceedings pleading the same causes of action. 6 In due course, Anpor Holdings decided to bring a fresh action. The present proceedings were commenced by statement of claim filed 30 October 2009. The statement of claim was valid for service for a period of six months in accordance with rule 6.2(4)(a) of the UCPR. Accordingly, unless that period was extended by order of the court, the statement of claim had to be served on or before 30 April 2010. It was in fact served ten days later, on 10 May 2010. 7 On 21 May 2010, the defendants filed a Notice of motion seeking an order that the originating process be set aside pursuant to rule 12.11 of the UCPR and, alternatively, that the proceedings be dismissed for want of due despatch. 8 Anpor Holdings responded to the defendants' application by moving the court (by Notice of Motion filed 10 June 2010) for an extension of the time within which the statement of claim was valid for service. Neither of those applications has yet been listed for hearing. 9 The defendants then issued subpoenas to Anpor Holdings' present and former solicitors. The documents the subject of the present application were produced in response to those subpoenas. 10 On 7 July 2010, Anpor Holdings' sole director, Mr Alfred Wong, swore an affidavit in support of the application for an extension of the time for service of the statement of claim. The present application is based principally on the contention that service of the affidavit waived privilege over a series of previously confidential communications and that it is inconsistent with that waiver for Anpor Holdings to maintain the privilege now claimed.